Alarmed by the rising spate of bans across the country, AVI decided to intervene legally and has since challenged the vape bans in three states – Karnataka, J&K and Delhi – in an attempt to put our voice across through the courts and to ensure the government cannot trample on the rights of millions of Indians to lead healthier lives. Below is a status update on each case.
The first legal challenge to be undertaken by us, it was the result of a circular banned ENDS issued by the Karnataka government (see govt position) on August 15, 2015. Our main contention of our PIL filed in the Karnataka High Court in early 2016, which was also backed by the media of the state, was that an RTI reply has revealed the state government had not conducted any study before imposing the ban. Another key argument is that the state has not banned the more harmful cigarettes. Importantly, we did not seek that ENDS be sold without restrictions, but asked the court to constitute a committee to look into how these new technology products can be regulated.
An attempt was made to delay the case when the Indian Dental Association intervened and sought to be heard before the government files its reply. However, when the IDA did not submit its intervention to the court even after six months, the court set aside its objection and asked the government to proceed with its reply to the PIL. In its reply filed in April 2018, the state government has quoted outdated information from the WHO and US FDA (which has since changed its position and has decided to shift smokers to low-risk ENDS).
A rejoinder is in the process of being drafted, after which the final arguments will be held. A judgement is expected in 3-4 months.
This state has the highest smoking rate in the country at 29%, making it even more vital that it back effective tobacco harm reduction measures. On the contrary, however, it issued a ban on ENDS in 2017 through a circular (see govt position), which is quite similar to arguments made the Karnataka government. A PIL has been filed in the Srinagar High Court challenging this vape ban, with a request that the case be expedited.
In late-2017, a woman Seema Sehgal filed a PIL in Delhi High Court claiming that the impact of ENDS on health are not known and therefore they should be regulated. We suspect this is an indirect way to get ENDS prohibited since it is highly suspicious that despite attaching all manner of information in its PIL, including Google searches on vaping, the petitioner could not find any evidence of the health impact of vaping.
The court asked all respondents, including the central government to respond. Thereafter, on April 4, 2018, the central government told the court that it intends to ban ENDS. Thereafter, it also filed an affidavit in the case reiterating its position, which is based on a lot of mistruths, including the gateway theory.
The vape vendors have intervened in the case, requesting the court they be heard before any judgement is passed since they are an affected party of such a decision. The next date for hearing has been set on August 21, 2018, when we will file our intervention to the court.